Stuyvesant Real Estate Co. v. Sherman — 81 N.Y.S. 642

Majority

p. 642

(40 Misc. Rep. 205.)

STUYVESANT REAL ESTATE CO. v. SHERMAN et al.

(Supreme Court, Appellate Term.

March, 1903.)

Headnote

1. Summary Proceedings—Verification.

In summary proceedings by a domestic corporation to dispossess a tenant the verification may be made by an agent of the corporation; Code . Civ. Proc. g 2235, providing that the petition must be verified in like manner as a complaint in an action in the Supreme Court, having reference only to the form of the verification, and not to the party verifying it.

2. Jurisdiction—Objections.

The jurisdiction of the Municipal Court of the city of New York may be questioned for the first time on appeal to the Appellate Term of the Supreme Court.

3. Summary Proceedings—Petition—Sufficiency.

A petition in summary proceedings to dispossess a tenant in the Municipal Court is insufficient to give jurisdiction where it states that the tenant was served with a three-days notice to pay rent or yield possession, “as prescribed in chapter 17, tit. 2, § 2240, of the Code of Civil Procedure, for the service of a precept,” where it fails to state which of three methods prescribed in such section was followed in making the service.

Appeal from Municipal Court, Borough of Manhattan, Eighth District.

p. 643

Summary proceedings by the Stuyvesant Real Estate Company, on petition of Frederick E. Mygatt, agent, against Mary E. Sherman and others. From a judgment dismissing the proceedings, plaintiff appeals.

Affirmed.

Argued before FREEDMAN, P. T., and GIEDERSEEEVE and GIEGERICH, JJ.

Van Wyck, Mygatt & Burnham, for appellant.

Wentworth, Lowenstein & Stern, for respondent.

Upon the return day of the precept issued in this proceeding the attorney for the tenant made a motion to dismiss the landlord's petition herein on the ground that said petition was not verified by an officer of the company, which is a domestic corporation, as required under sections 2235 and 525 of the Code of Civil Procedure. This motion was granted, and from the order dismissing the proceeding this appeal is-taken.

The petition in this case was made by one Frederick E. Mygatt, who alleges therein that “he is the agent of the Stuyvesant Real Estate Company; * * * that said company is a domestic corporation, and is the owner in fee and the landlord of the demised premises.” This petition is verified by Mygatt in the usual form, and the-claim is made that, because section 2235 of the Code of Civil Procedure provides that the petition in summary proceedings must be verified in “like manner as a verified complaint in an action brought in the Supreme Court,” and section 525, subd. 1, of the Code of Civil Procedure, provides that, “where the party is a domestic corporation, the verification must be made by an - officer thereof,” that, the petition in this case not having been verified by an officer of the-company, the court below had no jurisdiction; and this was the view taken by the trial judge. This claim is untenable. Section 523 has. reference solely to pleadings in an action, and has no application to-petitions in summary proceedings. The phrase, “a written petition, verified in like manner as a verified complaint * * * in the Supreme Court,” contained in section 2235, has reference only to the form of the verification, and not to the individual who verifies it. That section expressly authorizes the agent of the landlord to make the application (Powers v. De O, 64 App. Div. 373 , 72 N. Y. Supp. 103 ), and provides that the applicant must present to the judge or justice a written petition verified in “like manner,” etc., which means in like form as pleadings are verified. No other construction can reasonably be placed upon the language of that section. “Manner” means method of procedure; habit or custom.- It follows, therefore, that the motion to dismiss on that ground should not have been granted.

The respondent raises another question, however, which, as it - involves a question of jurisdiction of the court below, must be considered, although raised for the first time on appeal. The petition alleges that, after all the rent became due, “a three-days notice in writing, requiring in the alternative the payment of said rent or the possession of the said premises, was served in behalf of the said land

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lord, the person entitled to the said rent, upon the said tenant, the person owing it, as, prescribed in chapter 17, tit. 2, § 2240, of the Code of Civil Procedure, for the service of a precept.” There are three methods prescribed by section 2240 of the Code for the service of a precept. If the precept is served in a manner prescribed in either ■of the subdivisions of the section, it constitutes a service upon the tenant. The allegation of the petition is that the demand for rent was served upon the tenant. There is nothing in the petition to indicate in which of the three methods indicated the tenant was so served. This question has been passed upon in several cases, notably People ex rel. Morgan v. Keteltas, 12 Hun, 67 ; Tolman v. Heading, 11 App. Div. 264 , 42 N. Y. Supp. 217 ; Boyd v. Milone, 24 Misc. Rep. 736 , 53 N. Y. Supp. 785 —in all of which the contention of the respondent has been upheld. In these proceedings the statute must be strictly followed to confer jurisdiction upon the court to entertain them. Beach v. McGovern, 41 App. Div. 381 , 58 N. Y. Supp. 493 . The order dismissing the proceeding must, therefore, be affirmed.

Order affirmed, with costs. All concur.

Cases cited

Powers v. De O 64 App. Div. 373 N.Y. App. Div. 1901-10-04 p. 643